Did you know that gay and lesbian applicants can successfully obtain an interdependent (partner) migration visa even when they have a serious health condition? They can seek what is known as the health waiver.

This means that as long as health costs are not excessive, they can obtain the visa.  This benefits applicants who have a serious health condition, such as being HIV positive.

The standard health test applied by the Australian Department of Immigration does not leave much room for visa applicants with an illness or condition. It certainly rules out applicants who have HIV or any serious condition which might cost some A$26,500 over a five year period to treat.

If resources such as transplants or end stage dialysis need to be used, an applicant may be denied the health waiver. Again, for an interdependent visa (amongst a relatively small number of visas), applicants can seek to activate the health waiver.

What factors are relevant? Before the health waiver is exercised for a serious health condition, the Department examines the following things:

• the education and occupational needs or prospects of the applicant in Australia (this favours healthy and employed applicants);
• the potential for the applicant's state of health to deteriorate;
• the overall lifetime charge to Australian public funds as estimated by the Department's doctors (so if low if the person has access to funds or medical insurance, to the advantage of the applicant);
• factors preventing the sponsor from joining the applicant in the applicant's own country (such as loss of employment or income to the sponsor if moving to a new country, or difficulty in resettling in another country);
• whether the applicant has a genuine link to Australia;
• the location and circumstances of family members of the applicant and the sponsor;
• the merits of the case eg the strength of any humanitarian or compassionate factors; and
  
• the immigration history of the applicant and sponsor, including compliance with immigration requirements.

Are medical reports useful? Yes they are. The applicant's specialists or treating doctors should give reports to the Department commenting on any of the above factors.

What happens if the Department rejects your application? The Department of Immigration is extremely reluctant to find applicants have activated the health waiver. Most visa applicants need to go to the Migration Review Tribunal to have success in obtaining a visa if they have a serious condition. The Tribunal can review all the factors leading to a visa refusal by the Department.

Do other visa types have a health waiver? Other visa categories can, in some circumstances, allow for a version of the health waiver. Additionally, the subclass 457 temporary business visa (for skilled workers) effectively have a form of health waiver, if the employer is willing to pay the visa holders likely health costs.  

Further Reading

• Want a work visa for Australia?
• Skilled migration to Australia made easier
• No substitute for experience and skill in immigration law
  
• Australian migration numbers, visas and leadership
  
• Securing fairness for Australian visa applicants
  
• Gay and lesbian visa applications for Australia 
  

Author: 

Paul Hense BA, LLB, BSW (University of Sydney), Principal, Paul Hense Migration Lawyers

Tel (61 2) 9262 4242  |  Email: paul.hense AT henselaw.com.au 

If you wish to proceed to personalised assistance from Mr Hense of any inquiry, it will be done on a strict fee for service basis.

Mr Hense has been a migration lawyer since 1994. He has run a number of landmark cases, including before the High Court of Australia. He frequently represents clients before the Migration Review Tribunal and Refugee Review Tribunal. He has lectured for the University of NSW on refugee law and for the Immigration Advice and Rights Centre.  From 1990 and until recently he was a volunteer with the Immigration Advice and Rights Service. Previously he was a Senior Research Officer for the Australian Taxation Office.